Director of Public Prosecutions v Mitchell (a pseudonym)

[2018] VCC 912

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAM MITCHELL (A pseudonym)

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF PLEA HEARING:	30 May 2018 and 20 June 2018
DATE OF SENTENCE:	21 June 2018
CASE MAY BE CITED AS:	DPP v Mitchell (A pseudonym)
MEDIUM NEUTRAL CITATION:	[2018] VCC 912

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             One charge of assault with intent to commit a sexual offence and one charge of handling stolen goods – 19 year old offender with prior criminal history of sexual offences + dishonesty offences – complex mental health issues placing prisoner at risk of self-harm and suicide, especially in custody – Total Effective Sentence 4 ½ years with a non-parole period of 19 months.

Legislation Cited:    
Cases Cited:            R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269
Sentence:                

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms C Duckett	Solicitor for the Office of Public Prosecutions
For the Offender	Ms N Smith	Greg Thomas Solicitor

HER HONOUR:

1       Sam Mitchell[1], you have pleaded guilty to one charge of assault with intent to commit a sexual offence, which carries a maximum penalty of 15 years’ imprisonment.  You have also pleaded guilty to one charge of handling stolen goods, which carries a maximum penalty of 15 years’ imprisonment.

[1] Sam Mitchell is a pseudonym

2       The circumstances of your offending are detailed in the Summary of Prosecution Opening (Exhibit “A”).

3       Your offending on Charge 1 occurred on 17 June 2017.  On that date, you came across your victim, a young woman aged 14 years, who had been sleeping on the streets after having been reported missing on 15 June 2017.  You found her crying and disoriented, as she could not remember how she had got to the point near the Yarra River where you found her, and she was missing her skateboard and a bag of belongings.  You offered to help her.  After enquiring of her when she recalled last having her belongings, you accompanied her to an arcade in the city, where she located them.  You then noted that she appeared to be “short on clothes” and suggested that she accompany you to a place where there was “a bin full of Salvos clothing”.  You then took her to a parking lot and motioned for her to enter the stairwell.  She walked to the top with you behind her, and you told her that the clothing bin was “on the other side of the door”.  When your victim tried to open the door, she found it locked, and then noticed that you were licking cigarette papers and placing them over the motion sensors for the stairwell lights.  She enquired as to why you were doing that and you told her so that the lights would go off.  You then pushed her by her shoulders and tripped her, knocking her off her feet.  You spread her legs apart and put your crotch against her, as you were on top of her, and attempted to kiss her, but she turned her face away.  She started to speak, and you put your hand over her mouth, stating “Be a good girl and don’t speak or I’ll hurt you.”  Your victim started crying and you stated “Don’t cry either or I’ll hurt you.”  A struggle then ensued, during which you hit the complainant’s head against a metal balustrade.  You were attempting to take off your clothes, but the complainant managed to strike you in the head and pushed you away, shouting “Help.  Rape.  Somebody save me.”  You then fled, pulling your clothes on as you did so.

4       The complainant managed to find someone to assist her and reported the matter to police, giving a description of yourself, and showing them the area where you had attacked her.  A cigarette butt and a cigarette paper were located in that area and forensically examined.  CCTV footage showed a person matching your description to be entering the car park with your victim shortly prior to the occurrence of the offence.  You were identified from this footage by a Sexual Crimes Squad member.  Police utilised Crime Stoppers to appeal to members of the public for assistance to locate you.

5       Ultimately, on 9 August 2017, you communicated by email with a member of the police force who was known to you, effectively denying the offending, but stating that you would turn yourself in if you did not get breached on a community correction order.

6       On 21 August 2017, you were arrested in Ararat.  In a Record of Interview you told police that you had assisted your victim to find her belongings and then shown her a car park and taken her up the stairwell, where you told her it would be a safe place for her to sleep, as you had been sleeping on the streets for years.  You claimed to have had a cigarette while speaking to her and left her up there and, after you got to the bottom of the stairs, you heard a female yelling “Rape, rape, rape”.  You claimed that you attempted to go back and help her, but thought that you might get into trouble, and police might think you were the offender, so you ran away and took off your blue jumper and left it in a garden bed.  You denied having assaulted the complainant, and also denied having covered up sensor lights at the top of the stairwell.

7       Charge 2, handling stolen goods, involved you being found to be in possession of a number of items which had been stolen.  These included a Commonwealth Bank debit Master Card, together with a letter addressed to the owner of the Master Card, on which there were handwritten details, including her date of birth, ABN number, tax file number, Australian Super member number and a bank account number and BSB.  You also had a door access card. When asked about these items you claimed to have found them on a bus when travelling  from Melbourne to Ballarat. 

8       Despite lying to police in your Record of Interview about not having offended in relation to the matters charged, you indicated an intention to plead guilty to the offences on 19 January 2018.  You have been remanded in custody continuously since you were arrested on 21 August 2017.

9       You are presently aged 20 years, having been born in September 1997.  You come before the Court with a significant history of criminal offending dating back to your first appearance in the Melbourne Children’s Court on 17 June 2011, when you were only 13 years of age.  Over the years you have committed a number of dishonesty offences, offences of damaging property, including four charges of arson, and possessing a controlled weapon and methylamphetamine.  Of considerable concern to this Court is your history of violence.  You have committed a number of offences involving various assaults, three armed robberies, three offences of rape (committed on the one occasion in 2011) and an offence of assault with intent to rape (committed in 2014). 

10      Over a period of 6 years you have been given a variety of dispositions, initially without-conviction, probation orders, then, youth supervision orders, one of which you breached, a period of detention in a Youth Justice Centre, and a community correction order, which you breached. Only one month before committing the offences, you had appeared at the Melbourne Magistrate’s Court on 16 May 2017 for contravening a community correction order. You were given another chance by having the order varied.  You were still subject to that order, including conditions of supervision and rehabilitative treatment, and you breached that order by this offending, which is an aggravating feature.

11      In a very comprehensive plea on your behalf by Ms Smith, the Court was told that you have a sad background, having been raised in Coburg, along with your older sister, by your single mother.  Your father had apparently walked out on the family about a month before you were born and you have only had limited contact with your father throughout your life.  There was a period of contact when you were around the age of 9 years. Your father was supposed to be minding you after school, but you were left unattended, while your father abused substances. Throughout your life, you have experienced an ongoing sense of rejection from your father.

12      You were only 5 years of age when the Department of Human Services received a report about your lack of care.  This was to be the first of five reports between the age of 5 and 10 years.  From age 10 onwards, you commenced periods of  care and placements in residential Department of Housing units, and, up until age 13, had only a brief period of returning to live with your mother. Otherwise, you were subject to a custody order in favour of the Secretary of the Department of Human Services.  From age 14 to 18 you lived in the Department of Human Services care, but regularly absconded, and spent significant time living on the streets.  Since leaving the care of the Department of Human Services care at the age of 18 years, you have spent significant periods of homelessness, save for a period prior to your arrest, when you lived with your stepfather, who resides in Ararat with his two children aged 3 and 13.

13      From an early age you were bullied at school and there is a substantial amount of material before the Court that you suffer a complex constellation of very challenging conditions, which include High Functioning Autism, Post-Traumatic Stress Disorder, Gender Dysphoria, Depression and Anorexia Nervosa, together with long-term substance abuse issues.  In addition, at age 15, you were apparently sexually assaulted by two older males when you were in a transitional housing residence.  In February 2017, you reported to police that you were the victim of another serious sexual assault in the Fitzroy Gardens, but police were unable to locate the perpetrator.   Further, in late May or early June 2017, you were kidnapped and assaulted by a number of offenders from a Department of Human Services property.  The statement which you made to police, together with the police summary of evidence, was tendered as Exhibit “J”.  Persons were charged with this offence and the matter was listed for a committal hearing.  However, after you were remanded in custody, yourself, in relation to the matters for which I must sentence you, you discovered that the offenders who had kidnapped and assaulted you were also in adult custody. You felt unable to give evidence at the committal because you were experiencing suicidal ideation.  Accordingly, you withdrew your complaint and the matter did not proceed.

14      Somewhat remarkably, despite your very disrupted childhood and adolescence, you managed to complete your VCE while serving a sentence in the youth justice precinct and attending Parkville College.  You achieved an ATAR score of 86.4 and then completed a Bachelor of Information Technology at RMIT, in spite of the fact that you were regularly using Methylamphetamine at this time, and in unstable accommodation, or homeless.  Abuse of Ice and periods of binge drinking of alcohol have been problems for you since your early teen years.  Indeed, you had apparently used Methylamphetamine on the day of the offending for which I must sentence you.

15      Your counsel stated that you also have a number of worrying physical health issues.  At age 3 you were diagnosed with Bradycardia, which required surgery.  This has recently been the subject of a cardiac investigation at St Vincent’s Hospital for a possible leaking heart valve, which has caused symptoms of chest pain.  You have apparently been to hospital on six occasions since you were remanded in custody and this matter is still being monitored and investigated.  In addition, you were found to be HIV positive in 2016.

16      As mentioned earlier, you have some very serious and challenging conditions.  From an early age you have suffered Gender Dysphoria and you now prefer to be known as Sammy[2] and referred to by using the pronoun “she” rather than “he”.  A report from Dr Helen Driscoll, adolescent psychiatrist at Parkville Youth Justice Centre, dated 12 March 2015 (Exhibit “C”), states that you were referred to the Monash Gender Dysphoria Unit for assessment regarding hormone therapy.  You have apparently taken some hormonal treatment and would like to have surgery to transition from the male to the female gender.  Your Gender Dysphoria is a matter which has attracted unwanted attention from other residents, both in juvenile detention and while you have been on remand, and it has been necessary for you to be in protective custody. 

[2] Sammy is a pseudonym

17      The report from Dr Driscoll notes that you also suffer from High Functioning Autism Spectrum Disorder, also known as Asperger’s Syndrome, as well as complex Post-Traumatic Stress Disorder consistent with early and chronic childhood abuse and, at times, this causes significant dissociation.  Further, you suffer from a Chronic Mood Disorder which, at times, manifests itself as Major Depression.  Dr Driscoll noted that all of these diagnoses are long-term and not appreciably likely to change in the future, and ongoing support and treatment will be required long term.  While in juvenile detention you were on antipsychotic and antidepressant medication.  It is noteworthy that Dr Driscoll stated that you have no supportive family network and, indeed, on neither of the occasions that the matter was before me for a plea hearing, was there anyone in Court to support you.

18      Following the first day of the plea hearing on 30 May 2018, I adjourned the matter to enable the parties to access your Justice Health File and, also, to arrange for you to be psychiatrically assessed by Forensicare.  A report from forensic psychiatric registrar, Dr Rose Clarkson, dated 20 June 2018, was tendered as Exhibit “K” at the adjourned hearing on 20 June 2018.  It is a distressing document to read and I do not propose to recite from the 12-page report in great detail.  Dr Clarkson confirms that you meet the criteria for Gender Dysphoria, Persistent Depressive Disorder (Dysthymia), Autism Spectrum Disorder without accompanying intellectual impairment, and possibly also Post-Traumatic Stress Disorder, which had been previously diagnosed, but which the author was not able to fully explore due to time constraints in her assessment.  She also confirmed that you suffer Stimulant Use Disorder in remission in the prison environment.

19      It is apparent from Dr Clarkson’s report, and also from documents tendered from your Justice Health file (Exhibits “3” and “4” and “L”), that you have been diagnosed with Anorexia Nervosa in adult custody, although it may have been an emerging issue for some period.  It appears to be related to you wishing to lose weight in order to maintain a feminine body in accordance with your desire to transition to the female gender.  You have apparently been starving yourself or engaging in purging behaviours in order to try and lose weight.  In addition, you have been the subject of abuse of a sexual nature from co-prisoners because of your transgender identity, and this has necessitated you being moved to a protection unit for your safety.  I am in no doubt that having a transgender identity with a goal of transitioning to the female gender, even on its own, would make you very vulnerable in a male prison.

20      It is apparent that your traumatic background and multiple mental health issues have prompted you to engage in self-harming behaviours and to attempt suicide on a number of occasions.  On 14 November 2016, you apparently dislocated your hip after overdosing on medication and jumping off a bridge.  Since being remanded in custody there have been multiple attempts at self-harm, by either cutting yourself or attempting self-strangulation or overdoses. You have experienced suicidal ideation and, also, as previously mentioned, starved yourself or engaged in purging behaviours.  This history is deeply concerning and I have no doubt that you suffer ongoing serious psychological distress.

21      On 6 April 2014, you underwent a forensic mental health assessment as part of an intake assessment for Moroka Unit, and it was noted that you were at risk of deteriorating mental health, particularly relating to your Gender Dysphoria, which made you vulnerable to sexual exploitation from others.  You are currently on a regime of medication, which includes the antipsychotic medication, Quetiapine (Seroquel) 100 milligrams in the morning and at night, in order to assist with anxiety and sleep; the antidepressant, Sertraline, 100 milligrams in the morning, and vitamins and protein supplements for your condition of Anorexia Nervosa.  In relation to the latter, your counsel stated that your ideal weight was 95 kilograms and you had reduced your weight to 65 kilograms.

22      Dr Clarkson’s report notes that, in addition to your mental health issues, you suffer symptoms of Borderline Personality Disorder, which includes impulsivity, instability in affect and difficulty controlling anger.  These features, together with your Gender Dysphoria and limited coping strategies, whereby you currently use self-harm as a mechanism for dealing with psychological distress, means that you are at high risk of future deliberate self-harm and a chronically high risk of suicide.  Further, because of your transgender identity and deficits in social communication and interaction, Dr Clarkson states that you are at ongoing high risk of ostracisation and physical and sexual violence from co-prisoners.  Dr Clarkson  stated that it is likely that a custodial sentence would weigh more heavily upon you than it would on a person in normal health and could have an adverse effect on your mental health.  Your vulnerability to being targeted or assaulted by other prisoners, and your pattern of deliberate self-harm and suicidality may mean that you need to be managed long term in a protection unit for your own safety, but this can be expected to have an adverse impact on your mental health.  She stated that, in any event, ongoing incarceration in the male prison system is likely to have an impact on your mental health.  Dr Clarkson stated that you have a high need for ongoing mental health treatment, including psychotherapy, targeting personality vulnerabilities, drug and alcohol work to prevent relapse, medical monitoring and psychiatric treatment for your eating disorder and HIV-positive status and specialist assessment of your Gender Dysphoria, and ongoing support regarding gender transition and vocational and psychosocial rehabilitation.

23      Your counsel submitted that, although Dr Clarkson’s report did not support the nexus between any mental health condition and your offending, there can be no doubt that Principles 5 and 6 of R v Verdins[3] apply in your case, namely, that a custodial sentence would be more burdensome for you than for someone in normal mental health, and there is a real risk that a prison sentence will have an adverse impact on you mental health. The prosecution conceded that this was so.

[3](2007) 16 VR 269

24      One could not help but have compassion for the multiple afflictions, both mental and physical, that you endure on top of an unhappy life of difference, disadvantage and social isolation.  It is a tragedy that a person as young as yourself, with so many complex problems, should have no one at Court to support them and no one upon whom they can rely ( with the possible exception of your stepfather to whom I have previously referred).  Generally, rehabilitation would be the predominant sentencing principle in dealing with a young offender like yourself.  However, not only are there very worrying aspects to the offending for which I must sentence you, but, you have shown yourself through past offending to be a danger to the community. 

25      You have been given multiple rehabilitative dispositions, but shown a disinclination to engage with mental health treatment.  As Dr Clarkson notes, previous attempts at supervision and non-custodial sentences have been unsuccessful and you have failed to engage with forensic and civil mental health services in the community, even while under the compulsion of a court order.  Hence, your tragic problems must be weighed against the risk to members of the public, in particular females.  Clearly your sexuality is very complex and, in the past, you have identified as bisexual.  However, for some time now, you have indicated that you wish to transition to the female gender. Yet, you have seriously offended against females in the community in the past.  When you were only 13 years old, you and a co‑offender committed a brutal anal, oral and vaginal rape on a young woman with whom you and your co‑offender caught a train.  After getting off at Thomastown train station, you took her to a nearby park where the offending took place. In the history you gave to Dr Clarkson, you blamed your co‑offender, aged 17, for the offending because he initiated it and then asked “Do you want a turn?”  It is worrying that you seem to have so little insight into the impact of your behaviour and to not really seem to take responsibility for it. 

26      Some three years later, in 2014, you were convicted of assault with intent to rape, false imprisonment and intentionally causing injury. The victim on this occasion was an adult female who worked for Berry Street on a casual basis.  You were the only resident of a Berry Street house in Fawkner and your victim was the only staff member there to keep an eye on you.  You grabbed her from behind and pushed her to the ground, face down, and sat on top of her, pinning her arms and legs down.  When she struggled, you struck her to the face and head and then grabbed a pillow and put it over her head.  You then grabbed your victim by the legs and dragged her down the hallway.  You kept hitting her and pulled your pants down exposing your penis.  She asked for a glass of water and you told her “You can get cum in your mouth.”   You touched her breasts and put your hands down the top of her jeans and took her top off, as she continued to struggle.  Whilst you had her pinned down, you took off your clothes and, at one point, tried to put a sock in her mouth and put clothing over her face and kept telling her to be quiet.  You later got up, put your clothes on and told her that you were going to kill yourself and left the premises.

27      Like your prior sexual offending, the offending for which I must sentence you shows a lack of empathy for a 14 year old girl who was obviously sleeping on the streets and in a very distressed condition.  It also shows a capacity for manipulation in that you purported to befriend her to help her find her belongings and, then, lured her to a horribly isolated stairwell, where you assaulted her intending to rape her.  You engaged in activity to avoid detection by covering up sensor lights with pieces of paper so that movement would not be detected and attract the attention of any security systems that may have been in place.  It was seriously intimidating and creepy behaviour.  Fortunately, your young victim showed extraordinary fortitude by getting away from you and reporting the matter promptly. However, it is plain that she continues to suffer the consequences of your offending, which left bruises  on her arms where you had been forcibly restraining her.

28      Tendered as Exhibit “H” was a Victim Impact Statement made by your victim on 28 May 2018.  She describes what you did as terrifying and says she was scared for her life.  As she fled, she was distraught and crying.  She avoids car parks or stairwells because they bring back bad memories, as does the name “Sam”.  She has had to see multiple people like psychiatrists and school counsellors and had an inpatient psychiatric admission for a period of time.  She still asks, “Why did he do this to me, why?”  Her feelings of horror at the time and ongoing experiences of flashbacks and insecurity are understandable and foreseeable consequences of your offending. 

29       Notwithstanding that you were aware that police were looking for you, you did not come forward promptly and, when you did, you lied, maintaining that you had not been involved in the offending. It is, at least, to your credit that you pleaded guilty to the offence so that your young victim was not obliged to relive the ordeal that you put her through. 

30      In Dr Clarkson’s report, she states that you stated your belief that your use of methamphetamine had been a significant factor in the commission of the offence because it caused you to have “random rage outbursts” and that the offence was “one of those”.  I note that you gave the same excuse for your violent and terrifying behaviour towards the Berry Street employee, describing that offending as having been in the context of having an “angry outburst” while intoxicated with methamphetamine.  This seems not to be in accordance with a full acceptance of responsibility for your appalling behaviour, although Dr Clarkson stated that you did become tearful at various points, particularly when discussing the subject offending and also the sexual abuse that you had suffered in childhood. 

31      Dr Clarkson stated that you had expressed remorse for the offending and stated that it was inconsistent with the person that you would like to become in the future.  I must say that I am not convinced about your remorse, however, it is of note that Dr Clarkson states that you are developing some degree of insight into your mental illness. You have stated that you are now prepared to seek help, whereas you have declined to do so in the past and also considered that there was no need to engage with treatment for drug abuse as it was not a problem.  I also note that Dr Clarkson expresses some qualms about whether your motivation for longer term therapy will continue once your current crisis has resolved.  I must be mindful of the need to protect the community from your violent sexual offending.  It is plain that amongst your many mental health issues you have been diagnosed with borderline and antisocial personality traits and your risk of offending appears to be magnified by your use of illicit substances, particularly methamphetamine.  I am in no doubt that you do pose an ongoing risk to the safety of members of the community, particularly  females.

32      Whilst you are clearly in need of long term mental health care and treatment and behavioural intervention, Dr Clarkson states that it is important that there should be further offence-specific psychological therapy, particularly exploring the future risk of sexual offending (where the risk to members of the public is heightened by the fact that you have HIV positive status).  Dr Clarkson notes that specialist forensic services for your multiple issues would be available at Moroka Unit in Ravenhall Correctional Centre.

33      In all of the circumstances, notwithstanding your young age and multiple physical and psychological problems, there can be no doubt that the only appropriate sentence to reflect the gravity of Charge 1 is an immediate custodial sentence. The Court must denounce your conduct, emphasise general and specific deterrence and impose just punishment. Also, in the light of your significant history of dishonesty, it is appropriate to impose a custodial sentence, in relation to the offence of handling stolen goods, albeit that significant concurrency is appropriate in the interests of totality.  However, I am very conscious of your significant vulnerability and the fact that you have already been a target of verbal and physical attacks whilst in a male prison. I accept that your mental health and pattern of deliberate self-harm and suicidality may very well be adversely impacted upon by ongoing incarceration, such that you are high risk of future self-harm and high risk of suicide.  I have taken these matters very seriously into account and consider that, although your prospects of rehabilitation cannot be said, at this stage, to be optimistic, it is appropriate to try to enhance them by getting you treatment and having the strict supervision of parole when you are released into the community. In the light of the very significant concerns about your vulnerability in a male prison and the risk of your mental health deteriorating such that you continue to self-harm or even attempt suicide, I propose to set a disproportionately low non-parole period as I consider that your combination of circumstances are something of a special case and that all chances of rehabilitation may be lost if you are to remain in custody for a very lengthy period. Obviously, whether you are granted parole will be a matter for the Adult Parole Board and, although I strongly recommend in accordance with Dr Clarkson’s report that you be housed at the Moroka Unit in order to access specialist forensic treatment services, that placement is within the province of the Office of Corrections, not a judicial officer.

34      On Charge 1, assault with intent to commit a sexual offence, you are convicted and sentenced to be imprisoned for a period of 4 ½ years.

35      On Charge 2, handle stolen goods, you are convicted and sentenced to be imprisoned for a period of 6 months.

36      I direct that 2 months of the sentence on Charge 2 be served cumulatively upon the sentence on Charge 1.

37      The total effective sentence is 4 years and 8 months’ imprisonment. 

38      I direct that you serve a period of 19 months’ imprisonment before becoming eligible for parole.

39      I declare a period of 304 days pre‑sentence detention to be reckoned as time already served under the sentences imposed this day.

40 Pursuant to s6AAA Sentencing Act, I state that, had it not been for your pleas of guilty, the total effective sentence imposed would have been 6 years imprisonment, with a non-parole period of 4 years.

41      By reason of your offending on Charge 1, you attract the provisions of the Sex Offenders Registration Act 2004 and, pursuant to s34(1)(c)(ii), you are required to report under the provisions of that Act for the rest of your life. I will have my associate serve upon you a document which sets out your obligations under the Sex Offenders Registration Act.  Would you please acknowledge receipt of it with your signature.

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